[2009] KEHC 2874 (KLR)
The court found that the objector failed to demonstrate a lack of alternative income, as evidence showed she was receiving rental income from a lease with Everest Enterprise Limited and had remitted substantial funds to one of the sons in the U.S.A. The court also found that the appointed guardian had continued to...
Source-derived case information.
- Citation
- [2009] KEHC 2874 (KLR)
- Parties
- Petitioner: James Gicheru Muriuki; Petitioner: Wanjiku Muriuki; Petitioner: Wanjiru Muriuki; Petitioner: Ann Ruguru Muriuki; Petitioner: Elizabeth Mumbi Muriuki; Petitioner: Joseph Wachira Muriuki; Objector: Rose Mumbi Muriuki
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 113 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion for Release of Funds for Maintenance and School Fees
- Outcome
- application dismissed with costs to the petitioners
- Judges
- MM Kasango
- Legal Topics
- Mental Capacity, Guardianship, Maintenance of Dependants
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Gicheru Muriuki
Petitioner
Wanjiku Muriuki
Petitioner
Wanjiru Muriuki
Petitioner
Ann Ruguru Muriuki
Petitioner
Elizabeth Mumbi Muriuki
Petitioner
Joseph Wachira Muriuki
Petitioner
Rose Mumbi Muriuki
Objector
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion for Release of Funds for Maintenance and School Fees
Legal Issues
- 1 Whether the objector is entitled to monthly maintenance and school fees from funds deposited in court for the benefit of the subject.
- 2 Whether the objector and dependants lack alternative sources of income justifying release of funds from court.
- 3 Whether the appointed guardian has failed to provide for the subject's maintenance.
Ratio Decidendi
The court found that the objector failed to demonstrate a lack of alternative income, as evidence showed she was receiving rental income from a lease with Everest Enterprise Limited and had remitted substantial funds to one of the sons in the U.S.A. The court also found that the appointed guardian had continued to purchase medicine for the subject, but the objector had denied him access to deliver it. Therefore, the objector's application for release of Kshs. 100,000 per month from the funds deposited in court was without basis, as her claims of lack of income and need for maintenance were contradicted by the evidence. The application was dismissed with costs to the petitioners.
Court Disposition
application dismissed with costs to the petitioners
Orders
- The notice of motion dated 17th November 2008 is dismissed with costs to the petitioners.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
Miscellaneous Civil Application 113 of 2007
JAMES GICHERU MURIUKI
WANJIKU MURIUKI
WANJIRU MURIUKI
ANN RUGURU MURIUKI
ELIZABETH MUMBI MURIUKI
JOSEPH WACHIRA MURIUKI …………..………………. PETITIONERS
Versus
ROSE MUMBI MURIUKI…………………………………….. OBJECTOR
RULING
Following interlocutory application this court by its ruling delivered on 5th November 2007 amongst other things issued prohibitory order against properties belonging to the subject Francis Muriuki Wahome. The court further in that ruling ordered that Kshs. 3,031,989 be deposited in court. Out of that money deposited in court, the court ordered kshs. 100,000 be released to James Gicheru Muriuki who was appointed guardian of the subject. Those orders amongst others were made on the basis that the court on a prima facie basis found the subject’s property needed protection as provided under Section 26 of the Mental Health Act Cap 247. Before court now is a notice of motion dated 17th November 2008. That application is brought by the objector in these proceedings who is also the wife of the subject. The objector Rose Mumbi Muriuki deponed in her affidavit in support that the subject has two sons who require provision to be made for their school fees. Those sons are BRIAN MWANGI GATHONI who is said to be in standard eight class and MICHAEL MWANGI MURIUKI attending Park University in U.S.A. The objector stated that the family needs Kshs. 100,000 per month for their upkeep. She prayed that the amount be released by the court from the amount deposited in court. She deponed that neither her nor the subject have any source of income which can cater for the family needs. Finally she stated that James Gicheru Muriuki had failed to provide maintenance for the subject. In support of that application, learned advocate Mr. Julius Kitheka argued that kshs. 100,000 per month would cater for the school fees for the sons and would take care of other outgoings. He submitted that although the court had ordered that the subject be placed under the custody of James Gicheru Muriuki the subject had continued to live with his wife. That application was opposed. In the replying affidavit sworn by the petitioner James Gicheru Muriuki stated that Brian Mwangi Gathoni was not a son of the subject. Further that the objector and Michael Muriuki had leased 8. 0 acres to Everest Enterprise Limited for Kshs. 5,500 per acre per year for 10 years. That lease commenced on first January 2007. The petitioner further stated that he had been buying medicine for the subject but when he has attempted to deliver the medicine the objector has released the dogs to him. As a consequence one of his co-petitioners Ann Ruguru Muriuki was bitten by a dog. The petitioner however stated that he was willing to continue buying the medicine for the subject.
As stated before the court by its ruling of 5th November 2007 ordered that the subject’s properties be protected and his money be deposited in court pending full hearing of this petition. The court so far has order Kshs. 300,000 be released to James Gicheru Muriuki for the purpose of paying for the subjects medical expenses. The said James stated, and it has not been contradicted that he has continued to purchase that medicine but the objector has denied him access to deliver the same. In view of the fact that, that contention was not denied by the objector, the need of the objector to have money to buy medicine is therefore without basis. The need for school fees on the basis that the objector has no income is also defeated. This is because contrary to the objector’s statement the objector is in receipt of rental income from Everest Enterprise Limited. Further the objector exhibited ‘RMMI’ which shows that she remitted kshs. 263,555. 50 on 3rd October 2008 to Michael Mwangi Muriuki in U.S.A through Equity Bank at Karatina. That remittance is a clear indication that the objector has a source of income. For those reasons the notice of motion dated 17th November 2008 is dismissed with costs to the petitioners.
Dated and delivered this 27th day of January 2009.
MARY KASANGO
JUDGE